15. Binding Arbitration and Class Action Waiver
If you live in the U.S. or another jurisdiction which allows you to agree to arbitration, you and BTECLearn agree to submit to binding arbitration any and all disputes, claims, or controversies of any kind, whether based on statute, regulation, constitution, common law, equity, or any other legal basis or theory, and whether pre-existing, present, or future, that arise out of or relate to our Services, these Terms, and/or any other relationship or dispute between you and us, including without limitation (i) the scope, applicability, validity or enforceability of these Terms and/or this arbitration provision, and (ii) relationships with third parties who are not parties to these Terms or this arbitration provision to the fullest extent permitted by applicable law (each a “Claim,” and collectively the “Claims”). Claims will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as Claims that may arise after the termination of these Terms.
This arbitration agreement does not preclude you or us from seeking action by federal, state, or local government agencies. You and we also have the right to exercise self-help remedies, such as set-off, or to bring qualifying claims in small claims court so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional or ancillary relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with any of these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in this provision.
Before filing an arbitration, you and we will try in good faith to informally resolve any Claims. To start the dispute process, you must send an individualized written notice (“Notice of Dispute”) to
[email protected] that includes (1) your name, phone number, username (if applicable), and email address for your account (2) a description of the Claim and how you’d like it resolved and (3) the name, telephone number, mailing address and e‐mail address of your counsel, if any. If we have a Claim with you, we will send a Notice of Dispute with the same information to the email address for your account. Once a complete Notice of Dispute has been received, the recipient has 60 days to investigate the claims. If either side requests a settlement conference during this period, then you and us must cooperate to schedule that meeting by phone or videoconference. At the option of a party, you and BTECLearn each will personally participate and can each bring counsel, but the conference must be individualized, even if the same firm(s) represent multiple parties. For the Claims in the Notice of Dispute, any statute of limitations will be tolled from the date the notice is received until the later of (i) 60 days, or (ii) after a timely requested settlement conference is completed (“Informal Resolution Period”). An arbitration cannot be filed until the Informal Resolution Period has ended, and a court can enjoin the filing or prosecution of an arbitration in breach of this Section.
YOU AND BTECLearn HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and BTECLearn are instead electing that all Claims shall be resolved by arbitration under this arbitration agreement, except as specified above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this arbitration provision, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions of the subsection below related to batch arbitration. Notwithstanding anything to the contrary in this arbitration provision, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and BTECLearn agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Santa Clara County, California. All other Claims shall be arbitrated or litigated in small claims court. This subsection does not prevent you or BTECLearn from participating in a class-wide settlement of claims.
The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this arbitration provision and any arbitration proceedings. If Informal Dispute Resolution does not resolve satisfactorily within sixty (60) days after receipt of a Notice of Dispute, you and BTECLearn agree that either party shall have the right to finally resolve the Claim through binding arbitration. Any and all Claims shall be submitted for binding arbitration in accordance with the National Arbitration & Mediation ("NAM”) Comprehensive Dispute Resolution Rules and Procedures (the “NAM Rules”), in effect at the time arbitration is initiated, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures, and as modified by this arbitration agreement. The NAM Rules are currently available online at
https://www.namadr.com/resources/rules-fees-forms/. In the event of any inconsistency between this arbitration provision and the NAM Rules, such inconsistency shall be resolved in favor of this provision.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). A Request to BTECLearn should be sent either by mail to 2440 West El Camino Real, Suite 500, Mountain View, CA 94040 or by email to
[email protected]. A Request to you will be sent to your email address or regular address associated with your account. It is your responsibility to keep your contact information up to date. The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the informal dispute resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
The arbitration hearing (if any) will be held by videoconference, unless either party requests an in-person hearing and the arbitrator agrees. Unless you and BTECLearn otherwise agree, an in-person hearing will be held in the county where you reside (for U.S. residents), Santa Clara County, California (for non-U.S. residents), or as determined by the arbitrator (in the case of batch arbitration). Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM Rules. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Claim or the relief sought in the request for arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
A single, neutral arbitrator selected in accordance with the NAM Rules shall decide all Claims. If the batch arbitration process is triggered, NAM will appoint the arbitrator for each batch. The arbitrator shall be an active member in good standing of the bar for any state in the continental United States and shall be either actively engaged in the practice of law for at least five years or a retired judge. The arbitrator shall honor claims of privilege recognized at law. The arbitrator shall have exclusive authority to resolve any Claim, including, without limitation, disputes regarding the interpretation or application of the arbitration provision, including the enforceability, revocability, scope, or validity of the arbitration provision or any portion of the arbitration provision, except that all Claims regarding the class action waiver provision, including any claim that all or part of that provision is unenforceable, illegal, void or voidable, or that it has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Claim. The arbitrator also shall enforce statutes of limitations and other time-based defenses, offers of judgment/compromise and fee-shifting rules in the same way as a court would. The arbitrator’s decision will be final and binding upon the parties and may be enforced in any federal or state court that has jurisdiction. You and we agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of governmental agencies.
To increase the efficiency of administration and resolution of arbitrations, you and us agree that in the event that there are ten (10) or more individual requests for arbitration of a substantially similar nature filed against BTECLearn by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period (or as soon as possible thereafter), NAM shall (1) administer the arbitration demands in batches of 100 requests per batch (or, if between ten (10) and ninety-nine (99) individual requests are filed, a single batch of all those requests, and, to the extent there are less than 100 requests remaining after the batching described above, a final batch consisting of the remaining requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by BTECLearn. You and BTECLearn agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, except as expressly set forth in this provision.
You and we agree that BTECLearn retains the right to modify this arbitration agreement in the future. Any such changes will be posted at
www.bteclearn.com/about/terms and you should check for updates regularly. Notwithstanding any provision in these Terms to the contrary, we agree that if BTECLearn makes any future material change to this arbitration agreement, it will notify you. Your continued use of the BTECLearn website and/or Services, including the acceptance of products and Services offered on the website following the posting of changes to this arbitration agreement, constitutes your acceptance of any such changes.
Except as provided in the class action waiver section, a court may sever any portion of this Binding Arbitration and Class Action Waiver Section that it finds to be unenforceable, and the remaining portions will remain valid and enforceable.
